Because there is absolutely not one shred of evidence to connect Donald J. Trump to the Russian election meddling of 2016, it’s clear that Special Counsel Robert Mueller means to turn his investigation into a referendum on Trump’s handling of…the investigation itself. In other words, he’s looking to nail the president on an obstruction of justice charge, simply because that’s all he has. The only problem? It’s not entirely clear that Trump, by virtue of being the president and the chief executive (under which the Justice Department operates), actually CAN be guilty of obstruction. And that, according to a letter Trump’s legal team sent to Mueller in January, is apparently an argument being made in Washington right now.
The letter was published by The New York Times this weekend, and members of Trump’s team have confirmed that it’s the real deal. In it, Trump’s lawyers argue that not only does Mueller lack the legal authority to indict the sitting president on ANY charge, he certainly lacks the standing to charge him with obstruction. As many others have said for months, Trump had every right to fire Jim Comey last year, whether it was over the Russia investigation, the Hillary case, or the color of Comey’s hair.
From the Times:
[Trump’s lawyers] also contended that nothing Mr. Trump did violated obstruction-of-justice statutes, making both a technical parsing of what one such law covers and a broad constitutional argument that Congress cannot infringe on how he exercises his power to supervise the executive branch. Because of the authority the Constitution gives him, it is impossible for him to obstruct justice by shutting down a case or firing a subordinate, no matter his motivation, they said.
“Every action that the president took was taken with full constitutional authority pursuant to Article II of the United States Constitution,” they wrote of the part of the Constitution that created the executive branch. “As such, these actions cannot constitute obstruction, whether viewed separately or even as a totality.”
This is far from a slam-dunk claim, but it is one that will surely be tested if Mueller wants to try this approach. Which he almost certainly will; after all, if he doesn’t come up with an obstruction charge, he’ll be left with absolutely nothing – an embarrassing result after a year+ and $17 million in expenditures.
